Finally, the Supreme Court has recognized that intellectual property rights exist to promote progress (Microsoft vs. At&T and KSR vs. Teleflex), and not simply to protect some intrinsic right of ownership.
I’ve think this is a pretty straightfoward reading of the Constitution (Article 1, Section 8, Clause 8) and it’s bothered me that people don’t get it: not my congressman who I once wrote to about IP issues; not the Federal Circuit Court of Appeals which has most jurisdiction over these matters; and not the lawyers in my family who will talk your ear off about politics and justice but can’t be engaged on this issue. Concern about this has seemed to be the exclusive province of a geeky subculture that reads Slashdot and Wired magazine, where Lawrence Lessig’s columns mostly “preach to the converted.” But it’s not a geeky issue; the free exchange of ideas (and access to technology to promote that exchange) is fundamental to our democracy.
Perhaps we should have been using an analogy: should a restaurant go out of business because someone patented putting ketchup on a hamburger? Should I lose my house because I didn’t license the patent on putting the diswasher next to the sink? Some things are obvious; but adopting obvious ideas was becoming something that could risk one’s company or career. Chefs, interior designers, and software developers have similar jobs: we aren’t hired to invent something new and patentable as often as we’re hired to make to order that same general sort of thing everyone else is doing. What’s fair is for people and businesses doing actual creative work to be protected without their legal budget exceeding their R&D cost, but until now the the legal system didn’t see it this way.